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Pusl v. Means

September 23, 2009

AMANDA E. PUSL, APPELLANT
v.
MATTHEW J. MEANS AND G & J WELDING & MACHINE COMPANY, APPELLEES



Appeal from the Judgment February 28, 2008, In the Court of Common Pleas of Jefferson County, Civil Division at No. 58-2004 C.D.

The opinion of the court was delivered by: Popovich, J.

BEFORE: BOWES, FREEDBERG, and POPOVICH, JJ.

OPINION

¶ 1 Appellant Amanda E. Pusl appeals from the February 28, 2008 judgment in her favor in the amount of $25,000, entered in the Court of Common Pleas of Jefferson County.*fn1 Upon review, we affirm.

¶ 2 The factual and procedural history of this appeal is as follows. Appellant was injured in a two-vehicle accident on April 26, 2002. The other vehicle involved in the accident was owned by Appellee G&J Welding & Machine Company, and it was driven by Appellee Matthew T. Means. On January 26, 2004, Appellant filed a complaint against Appellees alleging that their negligence caused her injuries and, therefore, that Appellees were liable for damages. A two-day trial was held on October 29-30, 2007, in which a jury found that Appellees were negligent in causing Appellant's injuries. On October 30, 2007, a jury awarded Appellant $100,000 in damages as a result of Appellees' negligence. Before trial had commenced, Appellant had recovered $75,000 from her underinsured motorist benefits (UIM) carrier, State Farm. The $75,000 represented State Farm's policy limits. Evidence of this fact was not introduced at trial, and, therefore, the jury did not take this fact into consideration when fashioning its $100,000 damages award.

¶ 3 On November 6, 2007, Appellant filed a motion for Pa.R.C.P. 238 delay damages. On November 7, 2007, Appellees filed a motion to amend pleading to add a new matter and a motion to mold verdict. The trial court heard argument on the above motions, and it granted Appellees' motion to add a new matter. The trial court also granted Appellees' motion to mold the verdict and ordered judgment on the verdict in favor of Appellant in the amount of $25,000 due to the receipt of $75,000 that Appellant had acquired from State Farm prior to trial.

¶ 4 Appellant filed a timely notice of appeal to this Court on March 27, 2008. The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement of the errors complained of on appeal; she complied. In response, the trial court authored a Rule 1925(a) opinion addressing Appellant's proposed errors.

¶ 5 Appellant presents three issues for our review.

I. Whether the trial court erred in granting [Appellees'] motion to add new matter after trial when [they] waived all defenses under Pa.R.C.P. 1030(a)?

II. Whether the trial court erred in granting [Appellees'] motion to mold verdict pursuant to Pa.R.C.P. 227.1 when [they] failed to raise the issue before the verdict was rendered?

III. Whether the trial court erred in ruling that [Appellees] can get credit against the verdict for [Appellant's] bargained for UIM settlement in violation of [the] collateral source rule and subrogation rights.

Appellant's brief, at 4.*fn2

¶ 6 Appellant's first two arguments pertain to the trial court's decision to permit Appellees to amend their pleadings to include a new matter requesting the verdict to be molded to reflect Appellant's receipt of UIM benefits prior to trial. As these two arguments are interrelated, we address them contemporaneously.

¶ 7 Appellant argues that the trial court erred in granting Appellees' motion to amend to include a "set-off" defense after trial had concluded.

Further, Appellant avers that because the "set-off" defense could have been raised before trial, it was error for the trial court to determine that Pa.R.C.P. 227.1 allowed submission of this defense post-trial, despite Appellees' failure to preserve it in a pre-trial motion.

¶ 8 Appellant concedes that a party may, at any time, with consent of an opposing party or by leave of court, amend his or her pleading and that a trial court has broad discretion in ruling on a party's motion to amend the pleadings. Somerset Community Hosp. v. Allan B. Mitchell & Assocs., 685 A.2d 141, 147 (Pa. Super. 1996) (citing Pa.R.C.P. 1033).*fn3 However, Appellant directs this Court to the caveat that an amendment will not be allowed when it is against a positive rule of law, where it states a new cause of action after the statute of limitations has run, or when it will surprise or prejudice the opposing party. Id., 685 A.2d at 147 (citation omitted).

ΒΆ 9 Appellant argues that the amendment is against a positive rule of law, Pa.R.C.P. 1030(a) and that she was prejudiced and surprised by the amendment. Appellant states that Appellees should have set forth their defenses in accordance with Rule 1030 and, that, as a result of their failure to comply with this rule, these defenses are waived pursuant to Pa.R.C.P. 1032(a). Accordingly, Appellant ...


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